Molloy v. Village of Briarcliff Manor

[2] Should the defendant have alleged that the case was not within the exception ? The statute in force when the contract was made was chapter 506, Laws of 1906, enacted May 19th. The contract was dated October 1, 1906, and contained the stipulation required by section 3, chapter 415, Laws of 1897, as amended by chapter 567, Laws of 1899, which has been declared unconstitutional. People ex rel. Rodgers v. Coler, 166 N. Y. 1 , 59 N. E. 716 , 52 L. R. A. 814 , 82 Am. St. Rep. 605 ; People ex rel. Cossey v. Grout, 179 N. Y. 417 , 72 N. E. 464 , 1 Ann. Cas. 39. The statute existing at the time was, so far as material, as follows:

“Hours to Constitute a Day’s Work.—Bight hours shall constitute a legal day’s work for all classes of employees in this state except those engaged in farm and domestic service unless otherwise provided by law. * * * Each contract to which the state or a municipal corporation or a commission appointed pursuant to law is a party which may involve the employment- of laborers, workmen or mechanics shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted, or required to work more than eight hours in any one calendar day except in cases of extraordinary emergency caused by fire, flood or danger to life or property. * * * No such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee of the state or of a municipal corporation pay the same or authorize its payment from the funds under his charge or control to any such person or corporation for work done upon any contract, which in its form or manner of performance violates the provisions of this section, but nothing in this section shall be construed to apply to persons regularly employed in state institutions, or to engineers, electricians and elevator men in the department of public buildings during the annual session of the legislature, nor to the construction, maintenance and repair of highways outside the limits of cities and villages.”

[3] Hence the plaintiff was not entitled to recover anything, nor was the defendant competent to pay anything, for work done under the contract, if, in form or manner of performance, there was a violation of the provisions of the section. But the contract was in form obedient to the statute, although reference to the old rather than the new statute was made, but the stipulation is pursuant to the old statute. But unless the stipulation be referable to' the then existing law, there could be no recovery, as the contract would be void, and the plaintiff upon its introduction would show that he had no cause of action. But did the manner of its performance violate the statute? Must plaintiff assert and prove the validity of his contract, and is it sufficient for the defendant to deny it, or may the plaintiff assume the continuance of the contract and must the defendant plead that it has

The stipulation is not material to the performance of the work to be done, but inheres in the capacity of the parties to continue their contractual relations in case of a transgression of public policy. Hence, the defendant, if it would have the plaintiff deprived of his ability to sue under the contract, should assert the disability and the reason for it. Did he not pay the prevailing rate of wages?- Did he require men to work more than eight hours per day in cases other than of the extraordinary emergency enumerated in the statute? Whatever of such things were done in violation of the statute the defendant should point out. But the defendant is content to allege that plaintiff violated the contract by permitting or requiring men to work more than eight hours. But that is not necessarily a violation of the statute. For the statute declares that in cases he may work the men over eight hours. Is the defendant referring to overwork in such cases, or in cases when such conditions did not exist. The statute makes two classes of cases, in one of which men must not work over eight hours, and in the other of which they may. It does not put the plaintiff in the wrong if by his connivance or will the men worked over the allotted time, but it is the occasion of their excess that qualifies the labor as a violation of, or obedient to, law. Things excepted from a statute are as if it were not enacted. A proviso avoids them by way of defeasance or excuse, it is said, and so it is urged that in the present statute the exception is a mere proviso that excuses the violation of the statute, and that it need not be negatived. But when a statute declares that men shall not be permitted to labor more than eight hours on work, but excepts occasions when they may, there is no presumption that by so working the contractor disobeyed the law or incurred penalty, and that he must go to court and primarily make excuses for doing the lawful act.

[4] The statute is penal in its nature; it tends to the forfeiture of important property interests; it is capable of arresting or preventing the progress of great public works, and the alleged offender at the bar of the court should not be compelled to show that the act was not a guilty one, and to excuse it by manifesting the conditions under which it was done. Section 2143 pf the Penal Code provides:

“All labor on Sunday is prohibited., excepting the works of necessity and charity.”

An indictment that charged that a person labored on Sunday, without stating that the work was not of necessity or charity, would not state a crime. Rowell v. Janvrin, 151 N. Y. 60 , 45 N. E. 398 ; People v. Stedeker, 175 N. Y. 57 , 67 N. E. 132 . And yet the' things within the exception furnish an excuse quite as much as does the emergency work in the present statute. I see no occasion for discussing People ex rel. Rodgers v. Coler, 166 N. Y. 1 , 59 N. E. 716 , 52 L. R. A. 814 , 82 Am. St. Rep. 605 , in the Appellate Division, or Village of Medina v. Dingledine, 152 App. Div. 307 , 136 N. Y. Supp. 786 .

The judgment and orders appealed from should be affirmed, with costs. All concur.